Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Good Samaritan legislation and scope of practice

At a recent Advanced Resuscitation Techniques (ART) course in NSW we were advised that a person without a current ART certification would receive no protections under the Good Samaritan Act if they were to treat a casualty using oxygen equipment and that casualty was to subsequently sue them. The explanation was that first aiders weren’t to go “beyond their qualifications”.

There is currently a (probably unofficial) understanding in many RFS brigades that in the absence of a qualified ART operator, anybody who was confident to use the oxygen equipment could do so, with the consensus being that to do something was better than doing nothing.

I understand one doesn’t require first aid qualifications to render first aid, but does one forgo protections under the Good Samaritan Act if one goes beyond his or her current certification to deliver first aid. If so, at what point is one deemed to be “beyond his or her qualifications”?

Statements to the effect that going beyond one’s qualifications takes a person outside the good Samaritan protections shows a fundamental misunderstanding of those protections and why they are there. In short a person does not ‘forgo protections under the Good Samaritan Act if one goes beyond his or her current certification to deliver first aid’.

These provisions were introduced following the Ipp Review into the Law of Negligence even though the Review did not recommend that any such legislation was necessary. The Review’s final report said (emphasis added):

The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations. However, the Panel is not aware, from its researches or from submissions received by it, of any Australian case in which a good Samaritan (a person who gives assistance in an emergency) has been sued by a person claiming that the actions of the good Samaritan were negligent. Nor are we aware of any insurance-related difficulties in this area.

Under current law, the fact that a person (including a health- professional) was acting in an emergency situation is relevant to deciding whether the person acted negligently. It may be reasonable in an emergency situation to take a risk that it would not be reasonable to take if there was no emergency, provided that precautions appropriate to the circumstances are taken to prevent the risk materialising.

Also relevant to the issue of negligence is the skill that the good Samaritan professed to have. Suppose a passenger on an aircraft has a heart attack, and in response to a call for assistance by the cabin staff, a 60 year old specialist dermatologist goes to the passenger’s aid. The standard of care expected of the doctor would be set not only taking account of the emergency nature of the situation, but also of the fact that a doctor who has practised as a dermatologist for many years could not be expected to be as well-qualified and able to provide emergency treatment for a heart-attack victim as a cardiac surgeon or even, perhaps, an active general practitioner.

The Panel’s view is that because the emergency nature of the circumstances, and the skills of the good Samaritan, are currently taken into account in determining the issue of negligence, it is unnecessary and, indeed, undesirable to go further and to exempt good Samaritans entirely from the possibility of being sued for negligence. A complete exemption from liability for rendering assistance in an emergency would tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance. In our view, there are no compelling arguments for such an exemption. (Ipp Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2002), [7.21]-[7.24]).

Even though the Ipp Review saw no need for this type of legislation the states and territories all moved to solve the problem of community fear of legal liability, rather than any real risk. In doing so they have changed the question from ‘did the intervener act reasonably in all the circumstances?’ to ‘did the intervener act in good faith?’

Given my correspondent is from NSW I’ll use the NSW Act. The Civil Liability Act 2002 (NSW) s 57(1) says:

A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

A ‘“good samaritan” is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’ (s 56).

To be a good Samaritan the person has be

1) acting in good faith;

2) without expectation of payment or other reward

3) to assist a person who is

4) apparently injured or at risk of being injured.

Nothing in that list says anything about ‘acting within one’s qualifications’ and that is for obvious reasons. The Act is intended to encourage people, including those without any qualifications, to help when help is needed. The Ipp review may have said ‘The Panel understands that health-care professionals have long expressed a sense of anxiety about the possibility of legal liability for negligence arising from the giving of assistance in emergency situations…’ but the section as drafted is not limited to health professionals, it applies to anyone.

The key is ‘good faith’. One could argue that undertaking action that you know you are not trained is not ‘good faith’ but I don’t believe that would be the outcome. The key case on good faith is Mid Density Developments Pty Limited v Rockdale Municipal Council [1993] FCA 408. This case involved a question of whether the council acted in good faith when giving advice in relation to a properties flood risk. In the course of their judgment Gummow, Hill and Drummond JJ said (at [24]):

His Honour found that the statutory concept of “good faith” in the performance of the functions in question, included two criteria. The first was that the act be done bona fide and not maliciously or to achieve an ulterior purpose. The second was that there be “a genuine attempt to perform the function correctly, that is to say that the function should not be performed without caring whether or not it be properly performed”.

With resect to the section in question they went on to say (at [34]) ‘ The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than honest ineptitude. There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority’.

Applying that reasoning to the good Samaritan provisions requires that the intervener is acting ‘not maliciously or to achieve an ulterior purpose’ so they’re acting to assist the injured person, not to steal their wallet or do them harm and it’s a genuine attempt not to harm the person, ie to do the right thing. So a person who is confident in the use of oxygen and who genuinely believes that oxygen is warranted in the best interest and to avert harm to the patient is acting in good faith when they administer that oxygen; or use the person’s epi-pen or help them with their ventolin, or do CPR or use an automatic defibrillator. The person who says ‘I always wanted to do a tracheostomy using a Swiss army knife and a pen (as in M*A*S*H Season 5 Episode 8, ‘Mulcahy’s War’) and now I can because I can’t be sued’ is not acting in good faith.

It should be noted that whether or not one has a ticket or qualification to do something in no way determines whether or not one is negligent. A person who is unlicensed may be a perfectly safe and competent driver; a person with a licence may be a menace. Whether or not one holds a licence or certificate does not determine whether or not they are negligent in any particular case. There is no law that says one needs any particular authority to use oxygen. In an negligence action the question would be ‘was the use of oxygen reasonable?’ and with the good Samaritan provision, was it done ‘in good faith?’

Conclusion

The good Samaritan provisions are intended to encourage people to act on the basis of some help is better than none and to reassure people that they would not be liable. The Ipp review said they were unnecessary and would ‘tip the scales of personal responsibility too heavily in favour of interveners and against the interests of those requiring assistance’ because they do remove considerations of whether the response is ‘reasonable’. It is intended, in fact, to encourage action in the very circumstances described that is where a person ‘confident to use the oxygen [or other] equipment could do so, with the consensus being that to do something was better than doing nothing’.

The assertion that a person would ‘forgo protections under the Good Samaritan Act if one goes beyond his or her current certification to deliver first aid’ is quite simply, wrong.

POST SCRIPT: I have previously argued that I don’t think the good Samaritan provisions are intended to apply with volunteers with organisations such as the State Emergency Service, St John Ambulance and by extension, the Rural Fire Service. For those volunteers the ‘volunteer protection’ provisions are more appropriate. I have not addressed that issue in the discussion, above, focussing instead on the issues raised by my correspondent. For the discussion on the applicability of the good Samaritan provisions to emergency service volunteers see:

9 thoughts on “Good Samaritan legislation and scope of practice”

Could you please expand on the issue of “without expectation of payment or other reward”. For instance, if a person is paid to standby at a community event to provide first aid coverage, but receives no additional payment for performing 1st Aid, are they protected by the Liability Act?

If one is being paid to ‘standby at a community event to provide first aid coverage’ then they are not being paid just to be there, but to actually provide first aid if required. When they go to assist a person they are doing that as part of that contract so they are doing it for payment. Clearly they are not covered by the good Samaritan provisions. They are contracted first aiders they can be expected to provide ‘reasonable’ care not just care in ‘good faith’.

Just like to make a comment in the latter part of this article the argument that the civil liabilities act (which is what we are really talking about) as there is no Good Samaritan ACT in Australia, does not cover RFS members is in part very true, If you are not trained in a piece of equipment used in fulfilling a role in a workplace you are not allowed to use it according to WHS Act/Regulation. As the RFS is not a Civil entity but a workplace governed and operated under WHS any person using Oxygen must hold the qualification to use it.

When it comes to providing any care for people who are injured we need to act within our skills and limitations so a person who is on the road in a civil environment would generally not have access to this type of equipment and generally will act with due care, and do what they can to help the person until the Ambulance Service gets there.

However in the course of working in an organisation as the RFS we are under WHS and our requirements do change, thus now rendering care the person in this organisation need to adhere closely to the skills and limitations they possess and work under the scope of the organisation they are working for regardless if they are volunteer or not.

My response is:
It’s true there is not Good Samaritan Act, the good Samaritan provisions are in the various Acts referred to in the original post. The volunteer protection provisions are different, they say ‘A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work’. Further,

‘This Part does not confer protection from personal liability on a volunteer in respect of an act or omission of a volunteer if the volunteer knew or ought reasonably to have known that he or she was acting:
(a) outside the scope of the activities authorised by the community organisation concerned, or
(b) contrary to instructions given by the community organisation.

So a ‘good samaritan’ who uses 02 in good faith is protected, but a member of a volunteer organisation like the RFS is not if they are going beyond the scope of their instructions so if they’ve been specifically told not to use 02. Interestingly enough if the volunteer is protected so is the organisation (Civil Liability Act 2002 (NSW) s 3B) so the RFS can’t be sued for the volunteers decision not to use 02. If someone is vicariously liable for a good Samaritan however, they do not enjoy the same protection.

The reality is that the Civil Liability Act 2002 (NSW) is a hopelessly confused and inconsistent piece of legislation and is what happens when a Parliament legislates in response to a law reform campaign run by the tabloids and shock jocks and not informed policy development organisations like a law reform commission or in this case the Ipp Review that, as noted, recommended against good Samaritan provisions as they weren’t required, there was no problem to solve and which has meant that you can receive sub standard care from someone and provide they were trying hard, it’s your problem. See also Insurance for first aiders (August 13, 2014).

In response to the comment quoted, it seems to me that there was no definitive argument that Volunteer Emergency Workers were not protected under those protections for “good Samaritans”. Though, if this is not the case, I would be interested to know.

It also seems to me that Work Health & Safety (WHS) legislation is being misapplied in this context. Because, the scene of an incident is, essentially, a fluid situation which cannot always be controlled. WHS legislation assumes that there will always be a wealth of training, time and foresight. That should all these components no be present work does not proceed.

Emergency situations don’t operate this way. A person in need of immediate assistance cannot wait for the properly trained emergency worker to arrive. They must rely on the one who is present. Emergencies are uncontrolled situations where ideals cannot be assured.

I would argue, to your commenter, that WHS legislation is not applicable to an Oxygen Cylinder. Oxygen Cylinders are fairly simple to operate, and post almost no risk to the emergency worker (even when incorrectly operated). The worst case scenario is that the casualty may not receive the full benefit of the O2 (which is exactly the same as if it had not been used).

This is in direct contrast to other tools, on RFS trucks, such as chainsaws. A chainsaw when used by an untrained operator can cause very serious injuries. So WHS legislation is applicable to chainsaws, and I believe this is the intended spirit of the legislation.

In response to Ben’s comments, no there is not definitive ruling that members of organisations such as the SES, St John or the RFS are not covered by the good Samaritan provisions, that is just my argument, the view that I think represents the correct interpretation of the law given the inferred parliament’s intention. It is the sort of argument that one could make in court.

Having said that it’s one of those areas where a judge would be persuaded, in part, by his or her view of the facts and merits of the case. First of all the good Samaritan provisions only relate to giving emergency medical care, not say fire fighting. A judge might think an organisation like St John, that holds itself out as being experts in the field, should not enjoy the protection but should be expected to provide ‘reasonable care’ in all the circumstances. A judge may take a different view of the SES and RFS where that is not their core role.

Equally if the judge really thinks the volunteer should be protected; take the example that started this debate of a person confident in the use of O2 but without a current certificate. Putting aside the chances of such a case ever getting before a court are virtually zero, assume that it does. The judge may be faced with the fact that the volunteer provisions can’t apply as the person went outside the instructions of their agency (Civil Liability Act 2002 (NSW) s 64) but if the judge thinks ‘but this person was trying really hard to help and the plaintiff’s being unreasonable’ he or she may well be prepared to say that even if they were not acting as part of the RFS, they were acting as a ‘good Samaritan’. If, on the other hand, the member’s conduct was wholly unreasonable and dangerous (eg my tracheotomy) example the judge may well be willing to find that neither protection applies. In short the sections are so badly drafted and inconsistent (and unnecessary) a judge could pretty well use them to come to whatever conclusion he or she wanted to.
That doesn’t detract from my key point that the good Samaritan provisions do not say that if one goes outside one’s training the protection is lost. As I argue I think it is axiomatic that that is not the case, otherwise the sections would have no work to do. It could be argued that ‘good faith’ (as used in s 57) but that is not, in my view, correct. Remember that the Ipp Review summarised the law and why this clause wasn’t necessary. Without a ‘good Samaritan’ clause a person who chose to intervene need only do what was reasonable taking into account all the circumstances and their training. The good Samaritan clause was intended to make the law less, not more restrictive, so it’s changed the standard to ‘good faith’ – an honest effort to help the patient. If that meant ‘only do what you are trained to do’ a person with no training should do nothing, but doing nothing is exactly want the legislature wanted to avoid. They want people not to be afraid to try and help. Now a person who’s never seen an O2 system is unlikely to try and use it but someone who is familiar with it may well think ‘this is better than nothing’. That’s the sort of conduct the parliament wanted to encourage (remembering too that the Ipp Review said that given the common law, such a provision was unnecessary). So I’m confident that ‘good faith’ in the good Samaritan provisions of the Civil Liability legislation does not mean ‘do only what you are trained to do and no more’. On the other hand, if you are well trained and no the limitations and contra-indications of treatment, your good faith decision may well be to stick to the training and no more because you have a better understanding of the risks.

I do agree that the WHS reference is irrelevant. First WHS laws and regulations do not say, as a general rule ‘If you are not trained in a piece of equipment used in fulfilling a role in a workplace you are not allowed to use it’. The WHS Acts say that the PCBU must take reasonable steps to ensure the health and safety of workers (including volunteers) and that the actions of the PCBU (and its staff) do not expose others to risks to their health and safety. What is reasonable depends on a myriad of factors so one has to consider, first, what are the risks. There are risks in using oxygen, including that some people may have a condition that makes intensive O2 therapy dangerous, and using oxygen can pose a fire risk. But does a person who is experienced or confident in its use, but who does not have a ticket, expose someone to an unreasonable risk if they use 02 in an emergency? Probably not and it’s not going to be something that particularly attracts the attention of WorkCover.

It’s not correct that WHS laws don’t apply in an emergency, what is the case is that the question of what is ‘reasonably practicable’ (Work Health and Safety Act 2011 (NSW) s 18) is a fluid concept that takes into account all the circumstances. Something that the common law did too, but the good Samaritan provisions do not – remember they don’t require ‘reasonable’ conduct, just ‘good faith’.

This discussion started with my correspondent saying “At a recent Advanced Resuscitation Techniques (ART) course in NSW we were advised that a person without a current ART certification would receive no protections under the Good Samaritan Act if they were to treat a casualty using oxygen equipment and that casualty was to subsequently sue them.” I think instructors use this ‘card’ far too often – if you do what we say you will be legally protected and goodness and light will follow you; but if you deviate by one iota you will be sued and you will be on your own. It’s just not true. First how or why would someone sue because a person used oxygen? Even if they had a condition, such as they were receiving chemotherapy that meant high flow oxygen was a problem (http://www.medscape.com/viewarticle/760766_5) the difficulties in suing would be insurmountable, with or without those provisions.

If a member of the RFS is negligent, even if they go beyond the letter of their training, then it is the RFS that will be liable. It would only be gross and deliberate misconduct that would avoid that conclusion and I would suggest an RFS volunteer, confident in the use of O2 but without a current ticket, who sees a person in need and who uses O2 would not have acted so far beyond the scope of their duties to avoid the result that any liability they had would belong to the RFS. Vicarious liability (that is the liability of the agent superior for its servants and agents) applies when those servants or agents do the wrong thing, not when they do the right thing; otherwise it too would have no work to do.

One doesn’t mean to encourage reckless behaviour but I don’t think it’s unreasonable to say in ‘the absence of a qualified ART operator, anybody who was confident to use the oxygen equipment could do so, with the consensus being that to do something was better than doing nothing’. That may not be true for a person who’s never seen an O2 unit or where the equipment is obviously dangerous and not necessary to save a life (eg using a chain saw to clear a road or the fire ground). However, to return to my point and the question raised by my correspondent, one does not lose the good Samaritan protections just because ‘one goes beyond his or her current certification to deliver first aid’. What the legal consequences are beyond that would depend on all the facts and circumstances.

How would these provisions apply to a volunteer who is off duty. I’m a first aider with St John Ambulance, and I’m assuming in my day-to-day life I would be covered under the good samaritan laws in I were to render assistance, at a car accident for example.

My main question is while I am in uniform travelling to an event. In my car accident example above, if I was in St John uniform, using my St John first kit, am I still a good samaritan or am I now working under the organisation?

I can’t really answer that. Remember there are no cases where this is tested as people don’t get sued in these circumstances. No doubt if someone did want to sue they’d want to identify that you were part of the organisation as they’d want to access the organisations insurance, as no doubt you couldn’t pay. See however https://emergencylaw.wordpress.com/2014/08/25/nsw-ses-good-samaritans/. St John is not a statutory organisation (as SES is) but similar considerations would apply.

Hi I have read the comments above re good samaritan laws in Australia. Given that one does not require any certification or qualitifcation to administer first aid safely, and negligence is often considered where an individual’s judgement may have been impaired by the effects of drugs or alcohol, what happens in the event that in a workplace untrained staff provide CPR to an unconsious person (staff or otherwise), or the use of a defibrilator for instance? Where does one draw the line of what treatment or assistance is considered reasonable, and where a gap in knowledge or training may border on negligence or unsafe assistance to the injured. Does good samariten legislation in Aus have no exceptions for such or similar circumstances? Finally, is there then a point for workplaces to appoint first aiders, or given the good samariten protection, can we all be content and compliant having workplaces without first aiders, where staff can simply follow instructions from 000, or emergency management processes (eg. posters, etc) and given we are able to show we acted in good faith, have no risk of liability? Many thanks.

Good Samaritan legislation is intended to reassure people that if they make a genine attempt to help, whether it’s with CPR and/or the use of a defibrillator or any first aid, they will not be civilly liable. The test is not what is ‘reasonable’ but was the person acting in ‘good faith’ – honestly trying to help. A gap in knowledge or training may mean that assistance is not what a trained person would do or is even unsafe assistance, but that is why the legislation is there.

I’m not sure what you mean by “Does good samariten legislation in Aus have no exceptions for such or similar circumstances?” If you mean does good Samaritan legislation have an exception for the person who is intoxicated, yes, see above. If you mean does it have an exception, or does it not apply, if the person’s ‘gap in knowledge or training may border on negligence or unsafe assistance’ then the answer is ‘no’ because that is the very time the legislation is intended to apply.

The issue of workplace first aiders has nothing to do with good Samaritan legislation or the liability of first aiders. A workplace is required, by the Occupational Health and Safety legislation, to have first aid facilities and first aid trained staff as required by the risks on the job. If the workplace does not, the the Person Conducting the Business or Undertaking may be guilty of a criminal offence and may be liable if in any particular case, it can be shown that the presence of other first aid facilities was both reasonable and would have made a difference. Pointing out that a person who is not trained but who tries to assist is not personally liable makes no difference to the PCBU’s responsibilities. A good Samaritan is not liable; a PCBU has to ensure an adequate number of trained first aiders and first aid facilities. The two propositions are not related and have nothing to do with each other.